J-S68015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAL HEIDELBERG, III :
:
Appellant : No. 138 WDA 2018
Appeal from the Judgment of Sentence December 5, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003791-2016
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 24, 2018
Cal Heidelberg, III (“Appellant”) appeals from the judgment of sentence
made final by an order granting his post-sentence motion for reconsideration
of sentence and recommending him for boot camp. Order, 2/14/18.
We affirm.
The trial court summarized the facts of this case in its Pa.R.A.P. 1925(a)
opinion. Trial Court Opinion, 3/15/18, at 1–4. In short, following a dispute
at a bar near the intersection of 5th Street and Peach Street in Erie,
Pennsylvania, on August 13, 2016, Appellant fled from police, discarded a
firearm into a sewer drain, and discarded a plastic baggie containing drugs.
Appellant was arrested for various drug and weapon offenses. A jury
convicted Appellant on October 16, 2017, of firearms not to be carried without
a license, tampering or fabricating physical evidence, possession of firearm
____________________________________
* Former Justice specially assigned to the Superior Court.
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prohibited, and disorderly conduct.1 The trial court sentenced Appellant to
incarceration for an aggregate term of four and one-half to nine years on
December 5, 2017. Appellant filed timely post-sentence motions on
December 11, 2017, which the trial court granted in part, recommending him
for boot camp. Order, 12/28/17. Appellant filed a timely appeal on
January 22, 2018. In an amended sentencing order, the parties agreed to
waive Appellant’s ineligibility for boot camp. Order, 2/14/18. Appellant and
the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant states the following questions for our review:
1. Did the Commonwealth present insufficient evidence to sustain
each of Appellant’s convictions as the testimony was so
contradictory on the essential issues that the jury’s findings
were based on mere conjecture and speculation?
2. Did the trial court erred [sic] when it denied Appellant’s post-
sentence request for relief on weight of the evidence grounds?
Appellant’s Brief at 10.
Appellant’s first issue challenges the sufficiency of the Commonwealth’s
evidence that he possessed a firearm or engaged in disorderly conduct.
Appellant’s Brief at 24. Specifically, Appellant contends that, “[v]iewed in the
light most favorable to the verdict winner, the Commonwealth’s case rested
entirely on the incredibly inconsistent testimony of a number of witnesses.”
Id. at 27.
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1 18 Pa.C.S. §§ 6106(a)(1), 4910(2), 6105(a)(1), and 5503(a)(1),
respectively.
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The standard for evaluating sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943–944 (Pa. Super. 2011).
The offense of “firearms not to be carried without a license,” is defined,
in relevant part, as follows:
[A]ny person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person, except in
his place of abode or fixed place of business, without a valid and
lawfully issued license under this chapter commits a felony of the
third degree.
18 Pa.C.S. § 6106(a)(1). A person tampers with or fabricates physical
evidence:
if, believing that an official proceeding or investigation is pending
or about to be instituted, he . . . (2) makes, presents or uses any
record, document or thing knowing it to be false and with intent
to mislead a public servant who is or may be engaged in such
proceeding or investigation.
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18 Pa.C.S. § 4910(2). Regarding the offense of possession of firearms
prohibited, the Pennsylvania Crimes Code provides that:
[a] person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1). Finally, “[a] person is guilty of disorderly conduct
if, with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he: (1) engages in fighting or threatening, or in violent
or tumultuous behavior[.]” 18 Pa.C.S. § 5503(a)(1).
The trial court disposed of Appellant’s sufficiency challenge with the
following analysis:
[T]he Commonwealth presented sufficient evidence for the
jury to find Appellant guilty of [firearms not to be carried without
a license]. In particular, both counsel for Appellant and counsel
for the Commonwealth stipulated Appellant is a Person Not to
Possess as defined by 18 Pa.C.S. 6105(A)(1) and also stipulated
Appellant did not have a license to carry a concealed firearm at
the time of the alleged offense. In addition, the jury heard ample
testimony from Patrolman James Cousins, Brandon Tufts,
Christopher Hall, and Mike Dunn, who all indicated Appellant
carried a firearm on or about his person [at the time of] the
altercation which occurred near or at Coconut Joe’s on the night
of August 13th, 2016.
Likewise, since both counsel for Appellant and counsel for
the Commonwealth stipulated Appellant is a Person Not to Possess
as defined by 18 Pa.C.S. 6105(A)(1), in addition to the
aforementioned testimony, sufficient evidence existed for the jury
to find Appellant guilty of Possession of Firearm Prohibited.
Furthermore, the jury is the factfinder who makes the credibility
determination with respect to each witness as to whether
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Appellant possessed, used, or controlled a firearm on the night of
August 13th, 2016.
Moreover, the Commonwealth presented sufficient evidence
to support the jury’s verdict finding Appellant guilty of Tampering
with or Fabricating Physical Evidence. In particular, both
Patrolman Cousins and Mr. Dunn indicated Appellant tossed a
firearm into the sewer drain at the corner of French and Fifth
Streets while being chased by law enforcement. Also, Mr. Hall and
Mr. Dunn both confirmed the firearm later retrieved from the
sewer was the same firearm Appellant brandished during the
altercation at Coconut Joe’s. Thus, the jury was justified in
inferring Appellant, by discarding the firearm into the sewer,
intended to impair the availability of the firearm as evidence at a
later official proceeding or investigation.
Finally, the Commonwealth presented sufficient evidence to
support the jury’s verdict finding Appellant guilty of Disorderly
Conduct. Specifically, Mr. Tufts and Mr. Hall indicated Appellant,
while in a public location in front of Coconut Joe’s, participated in
an altercation and each personally observed Appellant retrieve a
handgun from a nearby vehicle. Both Mr. Tufts and Mr. Hall stated
Appellant maintained the firearm at his side during the altercation,
and Mr. Hall indicated he heard Appellant exclaim[,] “It’s about to
go down. Are you ready for this?” Patrolman Cousins further
indicated that after Appellant began to flee, Patrolman Cousins
commanded Appellant numerous times to stop; however,
Appellant refused to comply.
* * *
[The] Commonwealth presented ample circumstantial evidence in
this case, including testimony from six witnesses, the firearm
itself, live ammunition found in the chamber of the firearm, and a
“Firearm and Tool Mark” Lab Report prepared by the Pennsylvania
State Police Bureau of Forensic Services, which analyzed the
firearm. . . [T]his [t]rial [c]ourt finds the jury properly considered
[the] evidence presented by the Commonwealth and such
evidence was sufficient to warrant the jury’s findings that
Appellant committed these offenses . . . .
Trial Court Opinion, 3/15/18, at 8–11 (internal citation omitted).
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Upon review of the certified record, we discern no abuse of the trial
court’s discretion in denying Appellant’s post-sentence motion for judgment
of acquittal; the evidence was sufficient to establish beyond a reasonable
doubt that Appellant committed the offenses charged. In addition to the trial
court’s summary of the evidence, Appellant acknowledges—and the record
confirms—the following facts of record:
Mr. Tuft “observed Appellant pull out a black handgun, cock it, and hold
it to the side in his right hand.” Appellant’s Brief at 27; N.T., 10/16/17,
at 85.
Mr. Hall observed “an argument between two people at the corner,
which escalated, causing Appellant to go to his vehicle to retrieve a small
black handgun.” Appellant’s Brief at 27; N.T., 10/16/17, at 100.
According to Mr. Hall, “Appellant carried the gun in his left hand, and
[Mr.] Hall observed him taking it in and out of his pocket multiple times.”
Appellant’s Brief at 27; N.T., 10/16/17, at 101. Mr. Hall “saw Appellant
drop and then retrieve the gun near the dumpsters by
Molly Brannigan’s.” Appellant’s Brief at 27; N.T., 10/16/17, at 102, 112.
Mr. Dunn, “saw Appellant coming out between two cars with a gun
coming out of his shorts/pants.” Appellant’s Brief at 28; N.T., 10/16/17,
at 127–128. Mr. Dunn “observed [Appellant] throwing the gun near the
corner of Fifth and French Streets.” Appellant’s Brief at 28; N.T.,
10/16/17, at 129.
Officer Cousins pursued “Appellant at Fifth and State, saw movement
near Appellant’s waistline, heard something metal hit the cement near
the parking lot of Coconut Joe’s, saw Appellant reach down to retrieve
the object, and then saw a gun in Appellant’s hand.” Appellant’s Brief
at 28; N.T., 10/17/17, at 6–10, 16. Officer Cousins “described the gun
as dark in color.” Appellant’s Brief at 29; N.T., 10/17/17, at 41.
Police located a firearm in the sewer drain at Fifth and French Streets;
“it was silver and black in color.” Appellant’s Brief at 29; N.T., 10/16/17,
at 150, 159–160; N.T., 10/17/17, at 144; Commonwealth Exhibit 1.
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Additionally, as the trial court opined, the stipulations established that
Appellant was a “person not to possess firearm” and did not have a license to
carry a firearm. N.T., 10/17/17, at 23–24.
Viewing the evidence in the light most favorable to the Commonwealth,
we reject Appellant’s assertion that the jury’s verdict was based “entirely on
conjecture and is not sufficiently exclusive of every innocent hypothesis,
namely, that the firearm had been discarded by a third party.” Appellant’s
Brief at 30. The evidence was sufficient to establish that Appellant possessed
a firearm, discarded it, and engaged in disorderly conduct by participating in
an altercation and refusing to comply with Officer Cousins’ directives. Thus,
Appellant’s sufficiency claim fails.
Appellant’s second issue challenges the jury’s verdict as being against
the weight of the evidence. Appellant’s Brief at 31. According to Appellant,
“the Commonwealth’s case was riddled with inconsistencies on critical factual
questions in the case.” Id.
“The weight of the evidence is a matter exclusively for the finder of fact,
who is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711,
723 (Pa. Super. 2015). Our Supreme Court has set forth the following
standards to be used in addressing challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
744 A.2d 745, 751–[7]52 (2000); Commonwealth v. Brown,
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538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
not be granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at a
different conclusion. Widmer, 560 A.2d at 319–[3]20, 744 A.2d
at 752. Rather, “the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a
review of the exercise of discretion, not of the
underlying question of whether the verdict is
against the weight of the evidence. Brown, 648
A.2d at 1189. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the evidence.
Commonwealth v. Farquharson, 467 Pa. 50, 354
A.2d 545 (Pa. 1976).
Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis
added).
Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013). “Thus, the
trial court’s denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949
A.2d 873, 879–880 (Pa. 2008).
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Here, the trial court disposed of Appellant’s weight challenge as follows:
Based on the evidence presented by the Commonwealth,
Appellant’s conviction[s] of said offenses are not against the
weight of the evidence. To the extent Appellant asserts
discrepancies existed among the witnesses’ testimony as to
whether the firearm was black or gray or as to minute details of
how the events specifically unfolded, the jury was charged with
and was solely responsible for resolving any alleged contradictory
testimony. Similarly, to the extent Appellant asserts Patrolman
Cousins’ [trial] testimony differed from the testimony he provided
at Appellant’s preliminary hearing, the jury was also solely
charged with resolving any question related to the credibility of
Patrolman Cousins’ testimony. Thus, since the jury as the fact-
finder was free to believe all, part, or none of the witness[es]’
testimony against Appellant as outlined above, the jury’s verdicts
were certainly not “so contrary to the evidence as to shock one’s
sense of justice.”
Trial Court Opinion, 3/15/18, at 10.
Upon review of the certified record, we discern no abuse of the trial
court’s discretion in concluding that the verdicts were not against the weight
of the evidence. The record supports Appellant’s various references to
inconsistencies in the testimonial evidence. However, as the trial court
opined—and the law affords—any discrepancies, contractions, or
inconsistencies in the witnesses’ testimony were for the jury to resolve, and it
was “free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses.” Gonzalez, 109 A.3d at 723. In this case, the
jury chose to believe the evidence presented by the Commonwealth, as was
its right. Id. This Court will not assume the role of fact-finder and reweigh
the evidence. Appellant’s weight challenge also fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
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